Prosecutors working for Maricopa County Attorney Andrew Thomas persuaded a grand jury to indict Mary Rose Wilcox, the lone Democrat on the county Board of Supervisors, on 36 felony counts. But they should have a much harder time getting those charges to stick in court.
That's because this indictment is even sloppier than the one they issued against Supervisor Don Stapley last December.
Wilcox is accused of voting on a series of contracts (and contract amendments) that the supervisors awarded to the local nonprofit agency Chicanos Por La Causa, or CPLC. At the same time, the indictment alleges, Wilcox had received a loan from CPLC's subsidiary, Prestamos, which offers loans to small businesses.
Wilcox never reported the Prestamos loan on the personal-financial-disclosure forms she filed with the county. Nor did she abstain from voting.
That's shady behavior. But a little analysis raises serious questions about whether it's actually criminal -- much less whether this set of charges will hold up under a defense attorney's scrutiny.
First, Wilcox is accused of voting to award contracts with CPLC (or amend existing ones) 12 times from 2002 to 2006. But six of the votes came in early 2002 -- which appears to be outside the scope of the statute of limitations.
The statute of limitations for conflict of interest violations is seven years. Absent some extremely creative legal work, it's going to be tough to prosecute Wilcox for any vote she took before December 7, 2002.
That leaves six felonies, alleging that Wilcox voted to give contracts to CPLC six times. But at least one of those charges is total and complete hogwash.
Wilcox is charged with voting on contracts for CPLC's "outreach services" in March 2003. But, as the minutes from that meeting clearly show, Wilcox didn't show up until after the votes in question. (The vote is on page 11; Wilcox arrives on page 20.) The final vote was 4-0-1 -- and Wilcox is clearly that "1" who didn't vote.
So what about the other five votes? It's interesting to note that the five contracts, totaling $242,500, were all approved unanimously. It's not Wilcox who provided a swing vote.
Even more importantly: All five votes were for CPLC's behavioral health services and minority AIDS initiative. That means, absent testimony alleging a shakedown, they were unrelated to any loans Wilcox got from CPLC's small-business-loan subsidiary.
And that may really complicate the prosecutors' efforts. Arizona's conflict-of-interest law defines interest as either "substantial" or "remote." It holds that public officials must only abstain from a vote if they have a "substantial" interest in the contract at hand.
A "substantial" interest is, say, if the government is ordering supplies from a business you partially own. Or if it's hiring your wife. A "remote" interest is, say, if you're on an unpaid board of directors member. Or you own less than three percent of a for-profit company.
Wilcox's interest in CPLC seems remote, at best.
Indeed, the conflict-of-interest law carries a particular exception for "a class of persons consisting of at least ten members which is no greater than the interest of the other members of that trade, business, occupation, profession or class of persons."
That's some serious legalese, but what it means is this: If there are at least 10 business owners who've received loans from Prestamos, and Wilcox has no greater interest in CLPC than any of them, she should be free to vote on CLPC grants with no problem.
There go counts 1-12...
The remaining 24 counts in the indictment are based entirely on Wilcox's failure to report the loans on her disclosure forms. But that's exactly what Wilcox's fellow supervisor, Don Stapley, was indicted for last December -- and that case crumbled when it turned out that, years ago, the county had failed to properly pass a law requiring those forms to be completed.
Prosecutors tried to get around that here by charging Wilcox with perjury, forgery, and false swearing -- but all those charges still rest on the disclosure forms. That's a rocky foundation: The outside prosecutor tasked with bringing the case against Stapley, former Navajo County Attorney Mel Bowers, dismissed a host of similar charges against Stapley earlier this fall. Without county officials being legally required to complete the disclosure forms, he said, charges of perjury and false swearing just didn't hold up.
It's hard to imagine things will be much different in a case against Wilcox.
Really, the only difference might be who's bringing the case. Bowers was brought in after County Attorney Andrew Thomas recused himself from prosecuting Supervisor Stapley. It was only when Bowers made the clear-eyed assessment that the case had fallen apart that Thomas' office returned to trying to prosecute Stapley, and now Wilcox.
Unlike Bowers, Thomas' office seems generally disinterested in listening to reason and sober-eyed application of the law. Instead, it likes to throw the book at people -- and only ask questions later.
That's particularly true of the prosecutor Thomas has working on this case. Lisa Aubuchon isn't just New Times' favorite whipping girl; she's also the hack who lost politically sensitive cases against ACLU legal director Dan Pochoda, police officer Thomas Lovejoy, and the Dains family, which owns Ajo Al's restaurant. She's also the one who filed the original indictment against Don Stapley, the really stupid one that got dismissed entirely last fall.
Finally, it was Aubuchon who filed that really crazy lawsuit last week, accusing a bunch of loosely related county officials of being a -- seriously -- criminal enterprise.
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Really, when you think about how busy this woman is filing nonsense, it's no wonder she didn't bother to cross the t's and dot the i's on charges against Wilcox.
So the statute of limitations has probably already run on six charges? Who cares! Wilcox wasn't even present for one of the votes in question? Big whoop! There's an exception in the law for a class of 10 of more people affected by a vote? Come on now: The County Attorney's office couldn't care less about the stinkin' law.
For the record, we hate it when public officials fail to report their personal finances. And we really have never been a fan of Mary Rose Wilcox; that stuff the Goldwater Institute's Mark Flatten reported earlier this year was damning as hell.
But this is one of the sloppiest indictments we've seen in ages. And considering how much we have to deal with Andrew Thomas' office, that's saying something.